Rutledge v. United States Page 2

Rutledge v. United States general information

Media for Rutledge v. United States

Audio Transcription for Oral Argument - November 27, 1995 in Rutledge v. United States

Ruth Bader Ginsburg:

Well, merge... you've just used a word that the Second Circuit... what you describe seems to be what the Second Circuit's position is, and yet in your brief you reject that.

Barry Levenstam:

--Well, I reject that because the Second Circuit's approach involves entering judgments of conviction on two counts when we believe under the Ball decision that judgments of conviction should be entered under only one of the counts.

That, we believe, is Congress' intent, and that, we believe, is backed up by the force of the Double Jeopardy Clause.

Ruth Bader Ginsburg:

But isn't this all just formalism if your end result is that the court on appeal could reinstate the verdict on the conspiracy count in the event that the CCE conviction were reversed on a ground peculiar to that charge?

Barry Levenstam:

Perhaps it may appear to be formalism from the standpoint of the court, but from the standpoint of the defendant who has a double jeopardy interest here, he will have stood trial in public, perhaps in his community, and under the Second Circuit means of addressing this issue, he will have the additional stigma which the Court mentioned in Ball of having two judgments of conviction entered, really upon one offense.

Antonin Scalia:

Why is--

--And you think the vacatur erases, washes off that stigma?

This is not formalism?

Barry Levenstam:

Yes.

Antonin Scalia:

He's walking around in the community with two convictions instead of one conviction and a conviction plus vacatur.

That's the difference.

Barry Levenstam:

Right.

He'll--

Antonin Scalia:

And that's not formalism.

Barry Levenstam:

--No.

David H. Souter:

Why is there any additional stigma when the second offense is essentially a lesser included... I mean, he's already got all the stigma he can get from the first one.

The second is stigmatically redundant, isn't it?

[Laughter]

Barry Levenstam:

No, Your Honor, we don't think so.

I think--

David H. Souter:

No, but why not?

Barry Levenstam:

--Because--

David H. Souter:

What do they know about him as a result of the second conviction that they don't know about him as a result of the first?

Barry Levenstam:

--That he's been convicted on two significant drug offenses, which are in fact one and the same, that he has received two life sentences, and the newspaper reports at the time of the sentencing noted the number, the conviction total with respect to my client, and it seems to me, although I've been involved in the legal system nearly 20 years now, that for people who are not, when they read the papers and see that someone has received not one but two life sentences, they glean from that that he committed not one but two exceptionally heinous crimes, and under a--

David H. Souter:

And he... I'm sorry.

Barry Levenstam:

--I'm sorry.

David H. Souter:

No, go ahead.

Barry Levenstam:

I was simply going to say, under Congress' definition, based on our position, there has been only one offense here.

The lesser included is not to be punished separately.

It's not to be taken as a separate offense.